HomeMy WebLinkAbout93-584 CooperSTATE ETHICS COMMISSION
309 FINANCE BUILDING
P.O. BOX 11470
HARRISBURG, PA 1 71 08 -1 470
TELEPHONE (717) 783 -1610
ADVICE OF COUNSEL
July 23, 1993
Mr. Craig Cooper 93 -584
Pennsylvania Medical Society
Liability Insurance Company
777 East Park Drive
P.O. Box 8375
Harrisburg, PA 17105 -8375
Re: Former Public Employee; Section 3(g); Pennsylvania Insurance
Department; Bureau of Property and Casualty Insurance;
Actuary 1.
Dear Mr. Cooper:
This responds to your letter of July 7, 1993, in which you
requested advice from the State Ethics Commission.
Issue: Whether the Public Official and Employee Ethics Law
presents any restrictions upon employment of an Actuary 1 with the
Pennsylvania Insurance Department, Bureau of Property and Casualty
Insurance, following termination of service with the Pennsylvania
Insurance Department.
Facts: During the past seven (7) years you worked with the
Pennsylvania Insurance Department. Your last position was Actuary
1 with the Bureau of Property and Casualty Insurance. Your work
involved reviewing rate requests from insurance companies for
excessiveness, inadequacy and discrimination. You reviewed
homeowner and automobile rate filings. You did not review medical
professional liability rate filings nor did you have any
supervisory responsibilities in the medical professional liability
area of insurance.
In April, 1993, you commenced employment with the Pennsylvania
Medical Society Liability Insurance Company (Company) as an
actuary. The Company writes medical professional liability
insurance. One of your duties is to determine appropriate rates.
The Company must file any rate change request with the Pennsylvania
Insurance Department for approval.
Mr. Craig Cooper
July 23, 1993
Page 2
Based upon the above, you request an advisory regarding any
restrictions imposed upon you in connection with your submission of
rate filings to the Insurance Department on behalf of the Company.
Discussion: As an Actuary 1 for the Pennsylvania Insurance
Department, you were considered a "public employee" within the
definition of that term as set forth in the Public Official and
Employee Ethics Law and the Regulations of this Commission. 65
P.S. §402; 51 Pa. Code §11.1. This conclusion is based upon the
job description, which when reviewed on an objective basis,
indicates clearly that the power exists to take or recommend
official action of a non - ministerial nature with respect to
contracting, procurement, planning, inspecting, administering or
monitoring grants, leasing, regulating, auditing or other
activities where the economic impact is greater than de minimis on
the interests of another person.
Consequently, upon termination of public service, you became
a "former public employee" subject to Section 3(g) of the Public
Official and Employee Ethics Law. Section 3(g) of the Ethics Act
provides that:
Section 3. Restricted activities.
(g) No former public official or public
employee shall represent a person, with
promised or actual compensation, on any matter
before the governmental body with which he has
been associated for one year after he leaves
that body.
Initially, to answer your request the governmental body with
which you were associated while working with the Pennsylvania
Insurance Department, Bureau of Property and Casualty Insurance,
must be identified. Then, the scope of the prohibitions
associated with the concept and term of "representation" must be
reviewed.
The term "governmental body with which a public official or
public employee is or has been associated" is defined under the
Ethics Law as follows:
Section 2. Definitions.
"Governmental body with which a public
official or public employee is or has been
associated." The governmental body within
State government or a political subdivision
by which the public official or employee is or
has been employed or to which the public
Mr. Craig Cooper
July 23, 1993
Page 3
official or employee is or has been appointed
or elected and subdivisions and offices within
that governmental body.
In applying the above definition to the instant matter, we
must conclude that the governmental body with which you were
associated upon termination of public service is the Pennsylvania
Insurance Department, in its entirety. The above is based upon the
language of the Ethics Law, the legislative intent (Legislative
Journal of House, 1989 Session, No. 15 at 290, 291) and the prior
precedent of this Commission. Thus, in Sirolli, Opinion 90 -006,
the Commission found that a former Division Director of the
Department of Public Welfare (DPW) was not merely restricted to the
particular Division as was contended but was in fact restricted to
all of DPW regarding the one year representation restriction.
Similarly in Sharp, Opinion 90 009 - R, it was determined that a
former legislative assistant to a state senator was not merely
restricted to that particular senator but to the entire Senate as
his former governmental body.
Therefore, within the first year after termination of service
with the Bureau of Property and Casualty Insurance, Section 3(g) of
the Ethics Law would apply and restrict representation of persons
or new employers vis -a -vis the Pennsylvania Insurance Department.
It is noted that Act 9 of 1989 significantly broadened the
definition of the term "governmental body with which a public
official or public employee is or has been associated." It was the
specific intent of the General Assembly to define the above term so
that it was not merely limited to the area where a public official/
employee had influence or control but extended to the entire
governmental body with which the public official /employee was
associated. The foregoing intent is reflected in the legislative
debate relative to the amendatory language for the above term:
We sought to make particularly clear that
when we are prohibiting for 1 year that
revolving -door kind of conduct, we are dealing
not only with a particular subdivision of an
agency or a local government but the entire
unit..." Legislative Journal of House, 1989
Session, No. 15 at 290, 291.
Therefore, since the Ethics Law must be construed to ascertain
and effectuate the intent of the General Assembly under 1 Pa.
C.S.A. 51901, it is clear that the governmental body with which you
were associated is the Pennsylvania Insurance Department, in its
entirety.
Mr. Craig Cooper
July 23, 1993
Page 4
Turning now to the scope of the restrictions under Section
3(g), the Ethics Law does not affect one's ability to appear before
agencies or entities other than with respect to the former
governmental body. Likewise, there is no general limitation on the
type of employment in which a person may engage, following
departure from their governmental body. It is noted, however, that
the conflicts of interest law is primarily concerned with financial
conflicts and violations of the public trust. The intent of the
law generally is that during the term of a person's public
employment he must act consistently with the public trust and upon
departure from the public sector, that individual should not be
allowed to utilize his association with the public sector,
officials or employees to secure for himself or a new employer,
treatment or benefits that may be obtainable only because of his
association with his former governmental body.
In respect to the one year restriction against such
"representation," the Ethics Law defines "Represent" as follows:
Section 2. Definitions.
"Represent." To act on behalf of any
other person in any activity which includes,
but is not limited to, the following:
personal appearances, negotiations, lobbying
and submitting bid or contract proposals which
are signed by or contain the name of a former
public official or public employee.
The Commission, in Popovich, Opinion 89 -005, has also
interpreted the term "representation" as used in Section 3(g) of
the Ethics Law to prohibit:
1. Personal appearances before the former governmental body
or bodies, including, but not limited to, negotiations or
renegotiations in general or as to contracts;
2. Attempts to influence;
3. Submission of bid or contract proposals which are signed
by or contain the name of the former public official /employee;
4. Participating in any matters before the former
governmental body as to acting on behalf of a person;
5. Lobbying, that is representing the interests of any
person or employer before the former governmental body in relation
to legislation, regulations, etc.
Mr. Craig Cooper
July 23, 1993
Page 5
The Commission has also held that listing one's name as the
person who will provide technical assistance on such proposal,
document, or bid, if submitted to or reviewed by the former
governmental body constitutes an attempt to influence the former
governmental body. In Shav, Opinion 91 -012, the Commission held
that Section 3(g) would prohibit the inclusion of the name of a
former public official /public employee on invoices submitted by his
new employer to the former governmental body, even though the
invoices pertained to a contract which existed prior to termination
of public service. Therefore, within the first year after
termination of service, you should not engage in the type of
activity outlined above.
You may assist in the preparation of any documents presented
to the Pennsylvania Insurance Department. However, you may not be
identified on documents submitted to the Insurance Department. You
may also counsel any person regarding that person's appearance
before the Department. Once again, however, the activity in this
respect should not be revealed to the Department. Of course, any
ban under the Ethics Law would not prohibit or preclude the making
of general informational inquiries of the Department to secure
information which is available to the general public. This must
not be done in an effort to indirectly influence the former
governmental body or to otherwise make known to that body the
representation of, or work for the new employer.
In addition, the term "Person" is defined as follows under the
Ethics Law:
Section 2. Definitions.
"Person." A business, governmental body,
individual, corporation, union, association,
firm, partnership, committee, club or other
organization or group of persons.
In Confidential Opinion 93 -005, the Commission held that
Section 3(g) precludes a former public official /employee from
providing consulting services to his former governmental body for
a period of one year after termination of service in that the
prohibition against representing a person includes the former
public official /employee representing himself.
Further, Sections 3(b) and 3(c) of the Ethics Law provide in
part that no person shall offer to a public official /employee and
no public official /employee shall solicit or accept anything of
monetary value based upon the understanding that the vote, official
action, or judgement of the public official /employee would be
influenced thereby. Reference is made to these provisions of the
law not to imply that there has been or will be any transgression
Mr. Craig Cooper
July 23, 1993
Page 6
thereof but merely to provide a complete response to the question
presented.
Lastly, the propriety of the proposed conduct has only been
addressed under the Ethics Law; the applicability of any other
statute, code, ordinance, regulation or other code of conduct other
than the Ethics Act has not been considered in that they do not
involve an interpretation of the Ethics Law.
Conclusion: As an Actuary 1 for the Pennsylvania Insurance
Department, Bureau of Property and Casualty Insurance, you were
considered a "public employee" as defined in the Ethics Law. Upon
termination of service with the Insurance Department, you became a
"former public employee" subject to Section 3(g) of the Ethics
Law. The former governmental body is the Pennsylvania Insurance
Department, in its entirety. The restrictions as to representation
outlined above must be followed. The propriety of the proposed
conduct has only been addressed under the Ethics Law.
Further, should service be terminated, as outlined above, the
Ethics Law also requires that a Statement of Financial Interests be
filed for the year following termination of service.
Pursuant to Section 7(11), this Advice is a complete defense
in any enforcement proceeding initiated by the Commission, and
evidence of good faith conduct in any other civil or criminal
proceeding, providing the requestor has disclosed truthfully all
the material facts and committed the acts complained of in reliance
on the Advice given.
such.
This letter is a public record and will be made available as
Finally, if you disagree with this Advice or if you have any
reason to challenge same, you may request that the full Commission
review this Advice. A personal appearance before the Commission
will be scheduled and a formal Opinion from the Commission will be
issued. Any such appeal must be in writing and must be received at
the Commission within 15 days of the date of this Advice pursuant
to 51 Pa. Code S13.2(h).
cerely,
C
Vincent J Dopko
Chief Counsel